The city of Boulder has filed an appeal in Boulder District Court of two rulings by the Colorado Public Utilities Commission that the city believes could make it more difficult to acquire Xcel Energy's assets to create a municipal energy utility.

Last fall, the PUC ruled that it had authority over which properties and facilities outside city limits that Boulder could acquire through eminent domain, and that the city should apply to the PUC before beginning condemnation proceedings against Xcel.

Commissioners said they had an obligation to protect regional reliability and out-of-city customers.

Boulder's appeal addresses both those issues. That appeal could take several months, and city officials have indicated they hope to file for condemnation sometime this spring.

Boulder may not wait for all those issues to be resolved before it files for condemnation, city spokeswoman Sarah Huntley said. The City Council has authorized its attorneys to begin condemnation at any time.

"We could make a determination to file even if some issues are unresolved," she said. "We have not waived our right to do so. We are still carefully evaluating our options."

Attorneys for Boulder argue that the state constitution gives home rule cities broad authority to condemn property, including outside city limits. They do not believe the PUC has the authority to decide which property the city can condemn, and they do not believe that any PUC proceedings on acquisition or how to separate infrastructure while protecting regional reliability should occur before condemnation proceedings.

In a news release announcing the filing of the appeal, City Attorney Tom Carr said the city respects the PUC's authority, but believes the commissioners erred in their ruling.

"There is no doubt about the city's eagerness to work productively with the PUC," Carr said. "The purpose of the appeal is to ask a court to balance the PUC's authority with the city's constitutionally guaranteed right to create a municipal electric utility."

Boulder has sent a notice of intent to Xcel Energy to acquire its Boulder distribution system and all or part of several substations, including two substations in unincorporated Boulder County and distribution equipment that serves both city and county customers. The city also wants a high-voltage transmission line that loops around the city.

The notice of intent is a precursor to condemnation proceedings.

The decision to appeal to the district court comes after the PUC rejected a request by Boulder that it reconsider the original ruling.

City officials said they continue to work with the commission to "better understand" the process the PUC wants Boulder to follow while waiting for possible hearings and a decision on the appeal.

Terry Bote, a spokesman for the PUC, said the commission stands by its ruling and has no response either to the appeal or to Boulder's indication that it might file for condemnation despite the commission's ruling.

He cited the words of the commission's ruling: "Commission proceedings addressing the transfer of Public Service's CPCN (certificate of public convenience and necessity) or other plant, equipment and facilities used to provide service to customers located in unincorporated Boulder County are to be completed before the city of Boulder initiates a condemnation action for such property."

Xcel Energy spokeswoman Michelle Aguayo said the company has not had time to review the appeal, but it believes the commission's ruling was proper.

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